Cite as 23 I&N Dec. 962 (BIA 2006) Interim Decision #3536 

In re Lawrence ROWE, Respondent 

File A41 064 398 - Napanoch 

Decided June 29, 2006 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) Under the laws of Guyana, the sole means of legitimation of a child born out of wedlock 

is the marriage of the child’s natural parents. Matter of Goorahoo, 20 I&N Dec. 782 (BIA 

1994), overruled. 

(2) Where the respondent was born out of wedlock in Guyana and his natural parents were 

never married, his paternity has not been established by legitimation, so he is not 

ineligible to obtain derivative citizenship under former section 321(a)(3) of the 

Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1994). 

FOR RESPONDENT: Thomas J. Mills, Esquire, New York, New York 

BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members. 

COLE, Board Member: 

The respondent has appealed the Immigration Judge’s May 31, 2005, 

decision denying his motion to terminate removal proceedings based on his 

claim of derivative citizenship under former section 321(a) of the Immigration 

and Nationality Act, 8 U.S.C. § 1432(a) (1994). The appeal will be sustained, 

and the proceedings will be terminated.1 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent is a 30-year-old native and citizen of Guyana who was born 

out of wedlock on September 19, 1975. The names of the respondent’s 

mother and father appear on his birth certificate, but his parents never married. 

The respondent was admitted to the United States as a lawful permanent 

resident on August 16, 1986. 

On April 20, 1998, the respondent was convicted of the offense of attempted 

criminal sale of a controlled substance in the third degree in New York. In 

We acknowledge receipt of the respondent’s motion to expedite and have done so to the 

extent possible consistent with the regulation applicable to the issuance of precedent 

decisions by the Board. 8 C.F.R. § 1003.1(g) (2006). 

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February 2005, removal proceedings were initiated, during which the

respondent claimed that he derived United States citizenship under former 

section 321(a) of the Act. The Immigration Judge determined that because the 

respondent was legitimated under the laws of Guyana, he could not meet the 

requirements of former section 321(a) of the Act. The Immigration Judge 

therefore concluded that the respondent failed to sustain his burden of 

establishing his derivative citizenship. 

On appeal, the respondent argues that this case is governed by the reasoning 

in Gorsira v. Loy, 357 F. Supp. 2d 453, 458-64 (D. Conn. 2005), reconsidered 

on other grounds sub nom. Gorsira v. Chertoff, 364 F. Supp. 2d 230 (D. 

Conn. 2005). He therefore asserts that he was not legitimated under the laws 

of Guyana and that he qualifies as a derivative citizen of the United States. 

The Department of Homeland Security (“DHS”) did not file a brief on appeal. 

II. ISSUE 

The issue in this case is whether the respondent is entitled to derivative 

citizenship because his paternity has not been established by legitimation 

under Guyanese law, as required by former section 321(a)(3) of the Act. 

III. ANALYSIS 

The starting point of our analysis is former section 321(a) of the Act,2 which 

provided in pertinent part as follows: 

A child born outside of the United States of alien parents . . . becomes a citizen of 

the United States upon fulfillment of the following conditions: 

(1) The naturalization of both parents; or 

(2) The naturalization of the surviving parent if one of the parents is deceased; or 

(3) The naturalization of the parent having legal custody of the child when there 

has been a legal separation of the parents or the naturalization of the mother if the 

child was born out of wedlock and the paternity of the child has not been 

established by legitimation; and if 

Section 321 of the Act was repealed by the Child Citizenship Act of 2000, Pub. L. 

No. 106-395, § 103(a), 114 Stat. 1631, 1632 (“CCA”). It appears that if the CCA applied 

retroactively, the respondent would have attained citizenship under section 320 of the Act, 

8 U.S.C. § 1431 (2000), which was also amended by the CCA. CCA § 101(a), 114 Stat. at 

1631. But that section grants automatic citizenship only to those children who were under 

the age of 18, and who met the other requisite criteria, on February 27, 2001, the effective 

date of the CCA. See CCA § 104, 114 Stat. at 1633; see also Drakes v. Ashcroft, 323 F.3d 

189, 191 (2d Cir. 2003); Matter of Rodriquez-Tejedor, 23 I&N Dec. 153 (BIA 2001). 

Because the respondent was over the age of 18 on February 27, 2001, section 320 has no 

application here, and he must rely on the now-repealed section 321. 

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(4) Such naturalization takes place while such child is under the age of eighteen 

years; and 

(5) Such child is residing in the United States pursuant to a lawful admission for 

permanent residence at the time of the naturalization of the parent last naturalized 

under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) 

of this subsection, or thereafter begins to reside permanently in the United States 

while under the age of eighteen years. 

Former section 321(a) of the Act (emphasis added). 

The respondent does not dispute that he was born in Guyana, and that he 

must therefore adduce evidence to prove that he is a United States citizen. It 

is undisputed that the respondent was born out of wedlock and that both his 

admission to the United States as a lawful permanent resident and his mother’s 

naturalization occurred prior to his 18th birthday, so he meets the conditions 

set forth in sections 321(a)(4) and (5) of the Act. He therefore qualifies as a 

citizen if he meets the requirements of either clause (1), (2), or (3). 

Clause (1) does not apply here because the record only indicates that the 

respondent’s mother has been naturalized. The respondent does not contend 

that clause (2) has any application to his case. He does, however, assert that 

he acquired derivative citizenship under section 321(a)(3) of the Act because 

he was born out of wedlock and his paternity was not established by 

legitimation. Therefore, the dispositive question on appeal is whether the 

respondent has proved that his paternity has not been established by 

legitimation under the law of Guyana. 

In Matter of Gouveia, 13 I&N Dec. 604 (BIA 1970), a case involving a visa 

petition proceeding, we considered whether acknowledgment of paternity 

constituted legitimation under Guyanese law. The petitioner, who was 

seeking immediate relative status for his son, contended that he had 

legitimated his child for purposes of section 101(b)(1)(C) of the Act, 8 U.S.C. 

§ 1101(b)(1)(C) (1970), because his son was born in Guyana, he 

acknowledged paternity of the child, and he was named on the beneficiary’s 

birth certificate as the father. In our decision, we examined the laws of 

Guyana, including the Legitimacy Ordinance of British Guiana and the 

Registration of Births and Deaths Ordinance of October 1, 1968.3 

The Legitimacy Ordinance provided that 

where the parents of an illegitimate person marry or have married one another, 

whether before or after the commencement of this Ordinance, the marriage did or 

shall, if the father of the illegitimate person was or is at the date of the marriage 

We note that Guyana became an independent country in 1966 and that the Legitimacy 

Ordinance under the laws of British Guiana subsequently became known as the Legitimacy 

Act under the laws of Guyana. See Gorsira v. Loy, supra, at 494 app. (Law Library of 

Congress memorandum). 

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domiciled in British Guiana, render that person, if he is or was living, legitimate from 

the date of marriage. 

Legitimacy Ordinance, Laws of British Guiana, vol. IV, ch. 165, § 3(1) 

(1932), quoted in Matter of Gouveia, supra, at 605. The Registration of 

Births and Deaths Ordinance permitted entry of the father’s name on the birth 

certificate if he acknowledged himself to be the father and the parents made 

a joint request for such inclusion. We held that acknowledgment of a child 

born out of wedlock did not, however, confer legitimate status on the child 

because, under the laws of Guyana, the legitimation of a child required the 

marriage of the father and mother. 

In Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), we were asked to 

clarify our decision in Matter of Gouveia, supra, in light of the Guyana 

Children Born Out of Wedlock (Removal of Discrimination) Act 1983 

(effective May 18, 1983) (“Removal of Discrimination Act”). In reaching our

decision, we relied on a memorandum opinion from a senior legal specialist 

at the Law Library of Congress, which explained that the Removal of 

Discrimination Act amended five preexisting laws in the following ways: it 

replaced the terms “bastard” in the Evidence Act and “illegitimate person” in 

the Legitimacy Act with the phrase “child born out of wedlock”; it broadened 

the Maintenance Act to benefit a child born to unmarried parents; it amended 

the Civil Law Act to allow a child born out of wedlock to inherit from the 

father’s intestate estate; and it amended the Infants Act so that courts may 

award custody of a child born out of wedlock to the father. Matter of 

Goorahoo, supra, at 783. 

According to the memorandum, the purpose of the Removal of 

Discrimination Act was to eliminate discrimination against children born out 

of wedlock. Id. The memorandum therefore concluded that children born out 

of wedlock in Guyana have rights equal to those of children born in wedlock. 

Id. at 784. Based on the memorandum, we held that pursuant to the Removal 

of Discrimination Act, Guyana eliminated all legal distinctions between 

legitimate and illegitimate children. We also determined that all children born 

out of wedlock after May 18, 1983, are considered legitimate and that those 

under the age of 18 prior to that date are deemed to be the legitimated 

offspring of their natural parents. Id. at 785. 

Deeming a child legitimate or legitimated generally benefits the child for 

purposes of preference classification. However, a determination that accords 

a benefit in visa petition proceedings may become a detriment under former 

section 321(a)(3) of the Act because it requires an individual to show that his 

paternity was not established by legitimation. Thus, where we have found that 

all legal distinctions between children born in and out of wedlock have been 

eliminated and that all children are accorded equal treatment under the laws, 

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a child is deemed legitimate or legitimated for all purposes and must therefore 

accept the concomitant benefits and detriments of the application of the law. 

See Matter of Clahar, 18 I&N Dec. 1 (BIA 1981). For this reason, the 

respondent must be deemed to be to have been legitimated under our holding 

in Matter of Goorahoo, supra, unless we find that our decision was in error. 

The respondent contends that this case is not governed by Matter of 

Goorahoo, supra, and that the issue before us has been thoroughly addressed 

by the United States District Court for the District of Connecticut in Gorsira 

v. Loy, supra. In Gorsira, the district court conducted a comprehensive 

examination of Guyana’s Removal of Discrimination Act, the Infancy Act, 

and the Legitimacy Act, as well as the Law Library of Congress memorandum 

4 that we had relied on in Goorahoo. The court held that “the Legitimacy Act 

continued to provide that marriage of the child’s parents was the sole means 

of legitimation under Guyanese law” and that the Removal of Discrimination 

Act did not “equate recognition of paternity with legitimation.” Gorsira v. 

Loy, supra, at 463-64. 

The court first examined our holding in Matter of Goorahoo, supra, that 

Guyana has eliminated all legal distinctions between legitimate and 

illegitimate children and concluded that it was overly broad and unnecessary 

to our decision. Gorsira v. Loy, supra, at 461. In reaching this conclusion, 

the court observed that the Removal of Discrimination Act eliminated many 

existing legal distinctions between legitimate and illegitimate children by 

replacing the term “illegitimate” with “born out of wedlock” in several 

statutes, and it amended particular acts to remove discriminatory provisions. 

The court held, however, that the Removal of Discrimination Act did not 

include “any broad provisions eliminating all distinctions between illegitimate 

and legitimate children (or between children born in wedlock and out of 

wedlock)” and noted that “the Law Library of Congress memorandum 

concluded that the Act ‘does not attempt to generally abolish the legal 

distinction between legitimate and illegitimate children.’” Id. (quoting Law 

Library of Congress memorandum). Emphasizing that one significant 

distinction remained after the enactment of the Removal of Discrimination 

Act, i.e., that “a child born out of wedlock could only be legitimated through 

the subsequent marriage of his parents,” the court concluded that the 

Legitimacy Act was not amended to provide an alternative means of 

legitimation. Id. at 461-62. 

Upon review of the laws of Guyana and the Law Library of Congress legal 

memorandum attached to Gorsira v. Loy, we concur with the district court’s 

The Law Library of Congress memorandum was originally prepared in 1990 and was 

updated in 2005. The 2005 updated memorandum is attached to the opinion in Gorsira v. 

Loy, supra. 

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reasoning that legitimation occurs under Guyanese law only when the natural 

parents marry. The Removal of Discrimination Act did not expressly override 

or amend the Legitimacy Act, which provides that the marriage of a child’s 

parents is the sole means of legitimation under Guyanese law. Moreover, the 

Law Library of Congress memorandum does not support the conclusion that 

all children, whether or not legitimate, are to be accorded equal treatment for 

all purposes. Therefore, we agree with the district court that under Guyanese 

law, a child born out of wedlock may only be legitimated through the 

subsequent marriage of his parents. 

We note that the court distinguished Matter of Goorahoo, supra, in that our 

decision did not consider the effect of the Removal of Discrimination Act on 

claims involving former section 321(a)(3) of the Act. As the court explained, 

Matter of Goorahoo involved visa petition proceedings, which determine 

whether a person qualifies as a “child” under section 101(b)(1) of the Act, 

8 U.S.C. § 1101(b)(1) (2000), in furtherance of the goal of family 

reunification. Gorsira v. Loy, supra, at 462-64. By contrast, Gorsira 

involved the derivative citizenship statute at former section 321(a)(3) of the 

Act, which reflects a different goal: the protection of parental rights. 

The use of the term “legitimation” in former section 321(a)(3) may not 

technically be the same as that in section 101(b)(1), which we addressed in 

Matter of Goorahoo, supra, when we considered the definition of a “child.” 

However, we do not find it appropriate to distinguish its meaning in this case 

from that in Goorahoo simply because it is used in different provisions of the 

Act. Cf. Clark v. Martinez, 543 U.S. 371 (2005). Therefore, we find that 

Matter of Goorahoo, supra, must be overruled. 

We hold that the Legitimacy Act continues to provide that the marriage of 

the parents of a child born out of wedlock is the sole means of legitimation 

under Guyanese law. Because the respondent’s parents never married, we 

agree that his paternity was not established through legitimation. 

Consequently, we hold that the respondent derived United States citizenship 

under former section 321(a)(3) upon the naturalization of his mother. 

Accordingly, the respondent’s appeal will be sustained and the proceedings 

against him will be terminated. 

ORDER: The appeal is sustained and the removal proceedings are 

terminated. 

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